Research Brief 14

When most of us think of criminal trials, our general point of reference is popular culture. Courtroom dramas like Janet King, Rake, and Law and Order typically script a characterisation of a full prosecution process. There are the pre-trial activities by police: an investigation, interviews with witnesses and suspects, and charges being laid against the accused. Then the drama shifts to the courtroom scene, with judge presiding and jury ensconced in their box. The trial begins when the accused enters their ‘not guilty’ plea, and we watch snippets of a full trial culminating in the jury’s verdict. Justice is seen to be done.

We think we are watching something that at least resembles most criminal prosecutions, however these dramas are fictions in the truest sense. In the contemporary criminal prosecution, most accused plead guilty, and a trial is avoided. In 2013-14 across all Australian courts, seventy percent of those accused of criminal offences pleaded guilty. But this was not always the case.

In 1215 the Magna Carta transformed the criminal process from a ‘trial by ordeal’ by fire or water to a fact-finding process, judged with the advice of peers. For almost 600 years, the jury trial was upheld as a common law right, a protection from the arbitrariness of the state and the judiciary. Guilty pleas were extremely rare; judges were reluctant to accept a confession (guilty plea) from the accused, and encouraged them to change their plea. Yet some critical social phenomenon occurred which transformed the prosecution process so that trial by jury was eclipsed in most common law criminal court systems. This phenomenon was the rise of the guilty plea.

Guilty pleas became commonplace in the mid to late nineteenth century. In London’s Old Bailey court, there were very few cases when the accused entered a guilty plea between 1670 and 1730. By the beginning of the twentieth century, almost fifty percent of accused pleaded guilty. In America, guilty pleas dominated case outcomes much earlier. In New York’s Court of General Sessions, guilty pleas increased to more than seventy percent of cases by 1870 and to almost ninety percent of cases in Boston’s Police Court by 1880.

One theory for the historical rise in guilty pleas is that criminal trials became increasingly more complex, inefficient, and costly. This complexity is linked to a number of factors. Criminal trials became more adversarial, playing out as a battle of wits between lawyers; there were more complex rules of evidence over which lawyers could argue; and this increased the amount of material juries needed to consider in their deliberations. The length of trials increased exponentially. During the 1700s, for example, the Old Bailey juries decided between twelve to twenty criminal cases each day; by 1912 this increased to less than one case each day.

Some scholars suggested that justice administrators looked for alternative means of disposing of criminal cases. They needed to avoid jury trials, and guilty pleas provided the perfect mechanism. In most scholarship, the guilty plea is intrinsically linked to plea bargaining. Plea bargaining involves the exchange of a guilty plea for some kind of concession, usually a reduction in the number or seriousness of charges (‘charge bargaining’) or a reduction in sentencing outcomes (‘sentence bargaining’). The ‘reward’ for that plea generally meant a better outcome for the accused than they might have otherwise received.

At present, we do not know the time when the criminal prosecution process shifted from jury trials to guilty pleas in Australian jurisdictions. Preliminary analysis of data from the Prosecution Project suggests that most criminal defendants were still pleading ‘not guilty’ in the Western Australian and Victorian Supreme Courts into the early twentieth century. The rate of guilty pleas increased, however, during the interwar period. It remains to be seen whether plea bargaining or some other factors led to the rise of the guilty plea in Australian jurisdictions and how this gained traction in the prosecution process.

Author: Lisa Durnian, PhD candidate

To cite this research brief: Lisa Durnian, ‘The rise of the guilty plea’, The Prosecution Project, Research Brief 14, https://prosecutionproject.griffith.edu.au/the-rise-of-the-guilty-plea (27 June 2015, viewed 19 July 2016).

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On this week in... 1942

Woman acquitted

On 18 November 1942, 29-year-old Mabel Gertrude Robson was tried at the Kalgoorlie Court of Sessions for the unlawful assault of 31-year-old Mary Allan. It was alleged that Robson, a married mother of three, had put Allan in the hospital with a compound skull fracture after hitting her on the back of the head with a hammer. It was suggested that Allan had been carrying on with Robson’s husband, who was known to visit Allan and cut wood for her. Allan complained that continued headaches meant she was now unable to scrub floors or do washing. Robson’s defence was that the blow to Allan’s head had been unintentional. She had gone to Allan’s house in search of her husband, upon which Allan violently attacked her. In trying to fend her off, she had accidentally hit her on the back of the head. The jury found her not guilty, perhaps out or reluctance to send a young mother to gaol, or due to disapproval for Allan’s allegedly adulterous behavior.